AC Interests, L.P. v. Texas Commission on Environmental Quality

Petitioner AC Interests, L.P. applied for emission reduction credits established by the 1990 Federal Clean Air Act to the Texas Commission on Environmental Quality (TCEQ). While 97.3% of federally approved air pollution control programs have a 10- year to unlimited lifetime, TCEQ limits them to a 5-year life. In the course of litigation, which traveled once up to the Texas Supreme Court before remand, TCEQ argued that the 60-month time limit had expired. The Texas courts’ denied Petitioner’s argument that the 60-month deadline should have been equitably tolled while the rights to these credits were being litigated. The Questions Presented are:

1. Should Common Law allow the 60-month deadline for using emission reduction credits to be equitably tolled while a party seeks to establish the right to those credits in the trial and appellate courts?

2. Whether the Due Process Clause of the Fifth and Fourteenth Amendments allows the 60-month deadline for using emission reduction credits to be tolled while a party seeks to establish the right to those credits in trial and appellate courts?

3. Whether the TCEQ’s 60-month Emission Credit “lifetime” is in violation of the Federal Clean Air Act?

4. Whether the “mootness” determination by the Texas Supreme Court and First Court of Appeals violates AC Interests’ Due Process rights under the Fifth and Fourteenth Amendments?

5. Whether the $2,715,600 Emission Credit value that the TCEQ cost AC Interests is a “Taking” under the Takings Clause of the Fifth Amendment?